Clery Act Hierarchy Following the Final Rules Implementing the Violence Against Women Act
I-
Clery Reportable Crimes, Incidents, Arrests & Referrals
Following upon publication of the Final Rules implementing the Clery Act changes to the Violence Against Women
Act, the following categories of crimes are reportable when the crime occurs within Clery Geography (On Campus,
On Campus Residential, Non Campus and Public Property Adjacent to and Accessible from On Campus property):
Part I Primary Crimes
(A) Criminal homicide:
(1) Murder and non-negligent manslaughter, and
(2) Negligent manslaughter.
(B) Sex offenses:
(1) Rape,
(2) Fondling,
(3) Incest, and
(4) Statutory rape.
(C) Robbery.
(D) Aggravated assault.
(E) Burglary.
(F) Motor vehicle theft.
(G) Arson.
Part II Drug Alcohol and Weapons Arrests & Referrals for Discipline
(A) Weapons arrests.
(B) Drug law arrests
(C) Liquor law arrests
(D) Weapons law referrals
(E) Drug law referrals
(F) Liquor law referrals
Part III Hate Crimes- NARRATIVE FORMAT (Narrative format is advised over a table, but you may use a table
that re-lists all Part I Primary crimes, plus the four Hate Crime only crimes)
Part IV VAWA Crimes
(A) Domestic violence.
(B) Dating Violence.
(C) Stalking.
II-
Hierarchy Counting and Classifying Rules
The Hierarchy Rule states that when counting more than one crime that occurs in a single transaction, we
subsume lesser crimes into the gravest crime, and only count the gravest crime. Exceptions to the Hierarchy Rule
include the following:
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Crimes that occur in on campus residence halls are counted twice, once On Campus and once On Campus
Residential.
Arson is always counted and is not subsumed into graver crimes.
When there is a murder and a sexual assault, Sexual Assault crimes (Rape, Fondling, Incest, Statutory
Rape) are not subsumed into the Murder/Non-Negligent Manslaughter
Lesser crimes are subsumed into Sexual Assault Crimes.
Primary Crimes that are also on the basis of bias against a listed group count twice, once in Primary Crimes
and once in Hate Crimes.
The four Hate Crime only crimes are only counted in the Hate Crime category.
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III-
When a Primary Crime is also Domestic Violence, Dating Violence or Stalking, that crime is counted as a
Primary Crime and also in the applicable VAWA crime category.
When an incident can be classified as both Domestic Violence and Dating Violence, only count the
Domestic Violence.
When a crime or incident can be classified as Domestic Violence and/or Dating Violence and can also be
classified as Stalking, count both the Stalking and the Domestic or Dating Violence.
The Clery Handbook guidance states that when there is both an arrest and a referral for discipline for a
weapon, drug or alcohol violation of state or local law, count only the arrest. Further, if there is possession
of more than one of the illegal items, only count one item. The Handbook does not designate a hierarchy,
but the State University of New York has received a positive response to its proposed hierarchy of
Weapons, then Drugs, then Alcohol.
If/Then for Clery Reportable Crimes Under the Hierarchy
If the crime is (are)…
Murder/non-negligent manslaughter alone or with Robbery,
Burglary, Aggravated Assault, Motor Vehicle Theft (but not
Arson, Sexual Assault or a VAWA Crime)
Murder/non-negligent manslaughter and Sexual Assault
(Rape, Fondling, Incest, Statutory Rape)
Sexual Assault (Rape, Fondling, Incest, Statutory Rape) alone
or with Robbery, Burglary, Aggravated Assault, Motor
Vehicle Theft (but not Arson or a VAWA Crime)
Murder/non-negligent manslaughter and Sexual Assault
(Rape, Fondling, Incest, Statutory Rape) and Domestic
Violence
Murder/non-negligent manslaughter and Sexual Assault
(Rape, Fondling, Incest, Statutory Rape) and Dating Violence
Murder/non-negligent manslaughter and Sexual Assault
(Rape, Fondling, Incest, Statutory Rape) and Domestic
Violence and Dating Violence
Murder/non-negligent manslaughter and Sexual Assault
(Rape, Fondling, Incest, Statutory Rape) and Stalking
Murder/non-negligent manslaughter and Sexual Assault
(Rape, Fondling, Incest, Statutory Rape) and Domestic
Violence and/or Dating Violence and Stalking
Any of the above situations and Arson
An arrest of referral for discipline for violation of state or
local law for one of the following: drug, alcohol or weapons
possession
Then Report…
Murder/non-negligent manslaughter
Murder/non-negligent manslaughter and Sexual Assault
(Rape, Fondling, Incest, Statutory Rape)
Sexual Assault (Rape, Fondling, Incest, Statutory Rape)
Murder/non-negligent manslaughter and Sexual Assault
(Rape, Fondling, Incest, Statutory Rape) and Domestic
Violence
Murder/non-negligent manslaughter and Sexual Assault
(Rape, Fondling, Incest, Statutory Rape) and Dating Violence
Murder/non-negligent manslaughter and Sexual Assault
(Rape, Fondling, Incest, Statutory Rape) and Domestic
Violence (when a crime is both Domestic and Dating
Violence, we count only the Domestic Violence)
Murder/non-negligent manslaughter and Sexual Assault
(Rape, Fondling, Incest, Statutory Rape) and Stalking
Murder/non-negligent manslaughter and Sexual Assault
(Rape, Fondling, Incest, Statutory Rape) and Domestic
Violence and Stalking
Count as above but add Arson
If there is an arrest and a referral, count only the arrest. If
either arrest or referral for more than one crime, count
weapons, then drug, then alcohol, but not more than one.
Sources:
2011 Clery Handbook: http://www2.ed.gov/admins/lead/safety/handbook.pdf
Dept. of Ed Final Rules Implementing VAWA: http://www.gpo.gov/fdsys/pkg/FR-2014-10-20/pdf/2014-24284.pdf
Joseph Storch
Associate Counsel
Office of General Counsel
State University of New York
Joseph.storch@suny.edu
November 2014